PROVIDER MASTER SOFTWARE & SERVICES AGREEMENT

TERMS OF SERVICE 

1. SOFTWARE; SERVICES. 
   1. Software; Services. Subject to these Terms of Service, Tissue Health Plus will use commercially reasonable efforts to provide Customer the Software as further defined in the Order Form for access and use by Customer at all times, except during regularly scheduled and emergency maintenance. The Software will be provided in accordance with the Documentation (as defined in Section 2.2 below) and the Service Levels set forth in Exhibit A.  In the event the Tissue Health Plus Software is unavailable, Tissue Health Plus shall take commercially reasonable measures to correct the interruption as promptly as practicable. Further, subject to the terms hereof, Tissue Health Plus will provide Customer with reasonable technical support services in accordance with the terms set forth at [LINK] (“Support Services”).  To the extent offered by Tissue Health Plus and agreed upon pursuant to a subsequent Order Form, Tissue Health Plus may also provide Customer with certain professional services (“Professional Services”), including access to devices (“Devices”) used in connection with Professional Services, ordering services (“Ordering Services”) for certain durable medical equipment (“DME”), products, and other supplies direct from DME and other suppliers (collectively, “Wound Care Supplies”), and related wrap-around services (“Related Services”). Applicable Professional Services, Devices, Ordering Services, Related Services, and Support Services described in these Terms of Service, any Order Form and/or any Statement of Work, shall be collectively referred to herein as the “Services”. All Software and Services provided hereunder, including Customer and any Authorized User’s access to and use of the Software and Services shall be in accordance with and subject to these Terms of Service, any Order Form and/or any Statement of Work, or the BAA (as defined herein), which shall be incorporated herein by reference, and together, all the foregoing documents shall be referred to as the “Provider Master Software & Services Agreement” or the “PMSSA”). 
   2. Support Services. During the Term, Tissue Health Plus will provide Customer with reasonable support in connection with Customer’s authorized use of the Software and applicable Services in accordance with the relevant Order Form. Tissue Health Plus will provide Customer with Software updates and bug fixes, as well as enhancements, improvements and/or modifications to functionality, that Tissue Health Plus in its sole discretion makes generally available to its other similarly situated customers at no charge. Tissue Health Plus will use commercially reasonable efforts to correct reproducible failures of the Software to perform in substantial accordance with the then current Documentation (as defined in Section 2.2 below)
   3. Functional Upgrades & New Software Features: Customer shall not be entitled to receive updates or new releases that include significant upgrades or material changes to functionality for which Tissue Health Plus imposes an additional charge to its customers. Significant upgrades and/or material changes to functionality may be purchased by Customer, in its discretion, at Tissue Health Plus then current pricing. 
   4. Related Services; Professional Services.  Related Services will be provided in accordance with the parameters set forth in the applicable Order Form and Statement of Work for such Related Services. With respect to any Professional Services provided by Tissue Health Plus (or any of its affiliates) Tissue Health Plus will maintain sufficient contracted or employed clinical professionals (“Tissue Health Plus Providers”) necessary to provide the professional services in accordance with this PMSSA and shall ensure that the Tissue Health Plus Providers provide the Professional Services in a competent and professional manner, in accordance with applicable laws and industry standards.  Customer shall retain ultimate control over all clinical decision making of its operations; provided, however, that the Tissue Health Plus Providers providing the Professional Services shall, whether directly or indirectly, be under the direction and control of Tissue Health Plus (or an affiliate). 
   5. Devices. To the extent offered by Tissue Health Plus and set forth in an Order Form, Customer may acquire Devices for use in connection with the Software and Professional Services in accordance with the terms set forth in a related Statement of Work.  All Devices shall allow for secure and remote communication with the Software. Tissue Health Plus Providers shall be available, as needed, to provide Customer patients with instructions for properly using the Devices.
   6. Ordering Services. The Software will allow Customer to generate an order for Wound Care Supplies, prescriptions, imaging, as well as labs. These order may be transmitted to Customer’s EMR for order placement. Further, to the extent offered by Tissue Health Plus, Customer may elect to utilize the Software and its related Ordering Services component to acquire Wound Care Supplies directly from third-party DME companies and/or other suppliers or providers, in accordance with the terms or services for such Ordering Services.
   7. Authorized Users. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Software account and provision Authorized Users with credentials for accessing the Software, subject to such Authorized User’s compliance with Section 8.1(a) of these Terms of Service and acceptance of the End User License Agreement available at [LINK].  Such administrative user shall be obligated to remove access for Authorized Users associated with such user’s account in the event such Authorized User is no longer an employee or contractor of Customer.  Tissue Health Plus reserves the right to refuse registration of any Authorized User or to cancel passwords it deems inappropriate.  “Authorized Users” shall be those natural persons who are members of Customer’s workforce (i.e., employees, volunteers, trainees, and other persons whose conduct, in the performance of work for Customer, is under the direction and control of such Customer) who Customer has identified (by their legal names and their NPI number, as applicable). Customer shall not permit, and shall ensure no Authorized User permits, any third party to use or access the Software and applicable Services without prior written consent of Tissue Health Plus. Customer shall immediately notify Tissue Health Plus in the event any person or entity, other than an Authorized User, (i) attempts to access the Software, (ii) claims to offer a service or system that “integrates with” the Software, or (iii) requests to use Customers or an Authorized User’s credentials or requests that Customer or an Authorized User obtain credentials in order to access the Software.
2. RIGHTS; RESTRICTIONS; RESPONSIBILITIES.
   1. License Grant. Tissue Health Plus hereby grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable right to access and use the Software, and a non-exclusive, personal, non-transferable, limited license to use any Software furnished by Tissue Health Plus for access to or use of the Software during the Term.  
   2. Documentation and Use. Customer and its Authorized Users may only use the Software and applicable Services in accordance with the then-current documentation, specifications, and instructions regarding the Software and applicable Services made generally available by Tissue Health Plus to its Customers and modified from time to time (the “Documentation”) and these Terms of Service.  Customer will not, and will ensure its Authorized Users do not, directly or indirectly: (i) copy, modify, or create derivative works of the Software or Documentation, in whole or in part; (ii) rent, lease, lend, sell, re-sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Software and/or Services, in whole or in part; (iv) remove any proprietary notices, disclaimers or warnings from the Documentation, Devices, or Wound Supplies; (v) use the Devices in any manner not in accordance with the Documentation; (vi) use the Wound Supplies in any manner not permitted by the applicable label or instructions for use; (vii) abuse or misuse the Software and/or Services, including gaining or attempting to gain unauthorized access to the Software and/or Services, or altering or destroying information housed in the Software and/or Services; (viii) use the Software and/or Services in any manner that violates these Terms of Service or any other Tissue Health Plus policies; (ix) use the Software and/or Services es in any manner that violates applicable laws or regulations (including HIPAA, and any other data privacy or security rules); (x) use any ad blocking mechanism, device or tool to prevent the placement of any advertisements in the Software and/or Services; (xi) circumvent any technical measures implemented by Tissue Health Plus to safeguard the Software and/or Services or the confidentiality, integrity or accessibility of any information housed thereon, or any technical measures instituted to restrict access by Customer or an Authorized User to the Software and/or Services with respect to the class of Authorized User authorized pursuant to these Terms of Service; (xii) access any portion of the Software or Services other than with a commercial browser (such as Internet Explorer, Chrome, Mozilla Firefox) or with mobile applications developed and operated by Tissue Health Plus; (xiii) use the Software to transmit illegal, obscene, threatening, libelous, harassing or offensive messages, or otherwise unlawful material; (xiv) use the Software to transmit malicious code; (xv) interfere with or disrupt the integrity or performance of Software or third party data contained therein; or (xvi) attempt to gain unauthorized access to the Software.
   3. Export Restrictions.  Further, Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms of Service and will be prohibited except to the extent expressly permitted herein.
   4. Connectivity; Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software and applicable Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”), the specifications for which are set forth in the Product Overview & Feature Summary [LINK].  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and Authorized User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent
   5. Patient Consent. Customer shall be responsible for obtaining all necessary patient and related communication consents for clinical services provided by Customer in connection with or through use of the Software and Services, as well as HIPAA and any relevant state privacy consents and authorizations for the use and disclosure of patient information in connection with Customer’s use of the Software and Services.
3. MEDICAL RECORDS; DATA HOSTING, STORAGE AND USE; HIPAA.
   1. Data Storage. The Parties agree that Tissue Health Plus will store certain Authorized User records, and medical records of Customer patients, which shall include PHI (as defined by HIPAA), in the Software.  Tissue Health Plus will maintain such information and records in accordance with the Business Associate Agreement (“BAA”) entered into between the Parties. Notwithstanding the foregoing, the parties acknowledge and agree that Customer shall be the provider of record for the purposes of any and all medical record retention laws and rules, and it shall be Customer’s sole obligation to retain the full clinical record for all patient interactions in its EMR system. 
   2. HIPAA Compliance. Customer and Tissue Health Plus shall adhere to applicable regulatory and compliance standards which include compliance with the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§ 1320d, et seq., as amended and supplemented by Title XII, Subtitle D of the Health Information Technology for Economic and Clinical Health Act of 2009, and the regulations promulgated pursuant to each, including the Standards for Privacy of Individually Identifiable Health Information, the Security Standards for the Protection of Electronic Health Information, Administrative Requirements, the Breach Notification Rules and the Enforcement Rules at 45 C.F.R. Part 160, Part 162 and Part 164 (collectively, “HIPAA”) standards. Customer will maintain reasonable technical and organizational safeguards to protect the security of Customer Data (as that term is defined in Section 4.1). 
   3. Security Controls. Each party will implement and maintain reasonable security controls that include but are not limited to preventing or detecting the breakdown and circumvention of segregation of duties, system failure, incorrect processing, theft or other unauthorized removals of information or system resources, misuse of software, and improper access to or use of, alteration, destruction, or disclosure of information. In addition, Customer shall ensure that use is limited to only Authorized Users that have secured credentials to access the Software.  A party will notify the other party promptly of any unauthorized use of Software. Customer shall be responsible for Authorized Users’ compliance with these Terms of Services and for Authorized Users’ use and access of Customer Data in accordance with HIPAA and other applicable laws. 
4. CONFIDENTIALITY. 
   1. Generally. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Tissue Health Plus includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data, including PHI, provided by Customer to Tissue Health Plus to enable the provision of the Software and Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Software or Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. 
   2. Exceptions. The Disclosing Party agrees that the foregoing shall not apply with respect to (i) any information, other than PHI, after five (5) years following the disclosure thereof, or (ii) any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.  The Receiving Party shall protect the confidentiality of the Disclosing Party’s Confidential Information it receives in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).  
5. INTELLECTUAL PROPERTY
   1.  Tissue Health Plus Intellectual Property. Tissue Health Plus “Intellectual Property” shall mean the Software and Services, the Documentation, all improvements, enhancements or modifications thereto, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. Customer acknowledges that, as between Customer and Tissue Health Plus, Tissue Health Plus owns all right, title, and interest, including all intellectual property rights, in and to the Tissue Health Plus Intellectual Property.   
   2. Customer Content. Customer grants Tissue Health Plus, a non-exclusive, world-wide, royalty-free, perpetual, irrevocable, worldwide and fully sub licensable license to use, reproduce, modify, and adapt the data and other information input by Customer and its Authorized Users in the Software (including the Customer Data) (the “Customer Content”) to provide the Software and Services. Customer also grants Tissue Health Plus a non-exclusive, world-wide, royalty-free, perpetual, irrevocable, worldwide and fully sub licensable license to publish, market and sell Customer Content that has been de-identified and/or aggregated.
   3. Feedback Rights. Notwithstanding anything to the contrary, Tissue Health Plus shall have the right to collect and analyze Authorized User feedback, data and other information relating to the provision, use and performance of various aspects of the Software and Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and  Tissue Health Plus will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Software and Services and for other development, diagnostic and corrective purposes in connection with the Software and Services and other Tissue Health Plus offerings, and (ii) use or disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
6. PAYMENT OF FEES; FINANCIAL TERMS. 
   1. Fees. Customer will pay Tissue Health Plus the then applicable fees described in the applicable Order Form for the Software and applicable Services (including the Implementation Services) in accordance with the terms set forth in such Order Form (the “Fees”).  If Customer believes that Tissue Health Plus has billed Customer incorrectly, Customer must contact Tissue Health Plus no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to the Tissue Health Plus customer support department at tissuehealthplus.com/support.
   2. Adjustments to Fees.
      1. Annual Adjustment. All fees for the Software and applicable Services (other than Implementation Services) set forth in an Order Form incorporated into the PMSSA may be adjusted and reconciled annually, effective on the anniversary of the Effective Date to account for the following: (a) adjustments based on the U.S. Consumer Price Index for All Urban Consumers (CPI-U), Not Seasonally Adjusted, All Items, published by the Bureau of Labor Statistics of the U.S. Department of Labor, and (b) to reconcile and account for changes in the number of Customer’s Authorized Users using the Software and Services (the “Annual Adjustment”).  
      2. Calculation. The Annual Adjustment shall be calculated as follows: (a) with respect to CPI-U adjustments, by taking the percentage increase in the CPI from the last published CPI figure prior to the Fee adjustment date in comparison to the CPI figure from one year prior (the adjusted fees will be rounded to the nearest whole dollar) and increasing Fees accordingly; and (b) by adjusting the Fees to reflect the actual number of Authorized Users that utilized the Software and Services during the year as compared to the initial Fees, based on the per Authorized User charge set forth in the Order Form.
      3. Notification. Tissue Health Plus shall notify the Customer of Annual Adjustments in writing of any price adjustments at least thirty (30) days prior to the effective date of such adjustment, and any such Annual Adjustment shall be mutually agreed to by the Customer.
      4. Limitations. Notwithstanding the above, no annual price increase for Software or Services as set forth on an Order Form incorporated into this PMSSA shall exceed [X%] of the previous year’s fees, regardless of the CPI adjustment.

3. Payment Terms. Customer shall complete a form for preauthorized payments that permits Tissue Health Plus to initiate ACH transfers or other means of automatic payment for the Software and Services  (“Designated Account”).  Per such form for pre authorized payment, Tissue Health Plus shall charge Customer’s Designated Account on the tenth (10th) day of each month for the Fees, and Customer hereby authorizes Tissue Health Plus to automatically charge the Designated Account until such time as Customer terminates such authorization, in writing. For the avoidance of doubt Customer understands and acknowledges that Tissue Health Plus does not accept credit card payments and that Customer is obligated to provide a Designated Account for payment for the Software and Services.  If Customer revokes authorization for Tissue Health Plus to charge the Designated Account, Customer shall pay all Fees no later than thirty (30) calendar days from the invoice date. Fees not paid within thirty (30) calendar days shall accrue interest at the rate of one and a half percent (1.5%). Additionally, Tissue Health Plus may temporarily suspend the Software and/or Services hereunder until such time as Customer pays all Fees due and owing to Tissue Health Plus.  Exercise of a temporary suspension of the Software and/pr Services by Tissue Health Plus in accordance with this Section 6.2 shall not give Customer any right of termination under Section 7 hereof. Customer shall also pay the cost of any collection fees incurred by Tissue Health Plus, as well as any attorney’s fees incurred by Tissue Health Plus in seeking collection of past-due Fees from Customer
4. Billing and Collection. To the extent applicable for the Software and/or Services provided by Tissue Health Plus to Customer per this PMSSA, Customer shall have the sole and exclusive right and responsibility to bill and collect all patients, health plans, governmental agencies, third party payers, and other financially-responsible parties. In billing and collecting for the services provided by Customer to its patients as well as any Wound Care Supplies ordered through the Software and separately billable by Customer (to the extent applicable), Customer shall be responsible for all billing, coding, documentation, decisions, claims submission, and collections associated with the services and Wound Care Supplies including the determination of whether or not such services or Wound Care Supplies are covered by health plans, governmental agencies, third party payers or other financially-responsible parties. Tissue Health Plus makes no warranty or guarantee that any claim for payment will be successful and shall not be responsible to refund, offset or indemnify Customer for any claim denials, audits, adjustments, or overpayments in connection with Customer’s billing of the services or any Wound Care Supplies (as applicable). Customer shall comply with all billing laws, regulations, instructions, interpretative guidelines and other requirements established by governmental and commercial payers when billing for the services and any Wound Care Supplies. Customer further agrees to hold Tissue Health Plus harmless and indemnify Tissue Health Plus from any responsibility or claim of any kind relating to Customer’s billing and collection of fees for the services and any Wound Care Supplies.  

7. TERM AND TERMINATION
   1. Term. Subject to earlier termination as provided below, this PMSSA shall commence on the Effective Date and shall continue for a period of one (1) year from the Go-Live Date set forth in the Implementation Task Order (the “Initial Term”), after which this PMSSA shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party provides the other party of written notice of intent not to renew at least thirty (30) days prior to the end of the then-current Initial Term or Renewal  Term, as applicable. The Initial Term and any Renewal Terms are referred to as the “Term.”
   2. Termination for Breach. In addition to any other remedies it may have, either party may also terminate this PMSSA upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this PMSSA.  
   3. Termination for Governmental Action. Notwithstanding anything to the contrary in this PMSSA, Tissue Health Plus has the right, upon notice to Customer, to immediately terminate, suspend, or amend this PMSSA, without liability: (a) to comply with any order issued or proposed to be issued by any governmental agency; (b) to comply with any provision of law, any standard of participation in any reimbursement program, or any accreditation standard; or (c) if performance of any term of the PMSSA by either party would cause it to be in violation of law.
   4. Termination for Regulatory Reasons. Notwithstanding anything to the contrary in these Terms of Service, either party may terminate the PMSSA immediately if: (a) either party or its employees or contractors are excluded from participation in or debarred from participation in any federal healthcare program (“FHCP”, as further defined at 42 USC § 1320a-7b); or (b) either party determines that the continuation of the Software and/or Services provided under this PMSSA may threaten the health and safety of patients.
   5. Effect of Termination. Customer will pay in full for the Software and Services up to and including the last day on which the Software and Services are provided. Upon any termination, Tissue Health Plus will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Tissue Health Plus may, but is not obligated to, delete stored Customer Data. 
   6. Suspension of Access. Tissue Health Plus, at its election, may suspend access to the Software and Services by Customer or any Authorized User (i) pending Customer’s cure of any breach of this PMSSA, or (ii) in the event Tissue Health Plus determines in its sole discretion that access to or use of the Software or  Services by Customer or any Authorized User may jeopardize the Software or Services or the confidentiality, privacy, security, integrity or availability of information within the Software Services, or (iii) if Tissue Health Plus determines that Customer or an Authorized User has violated or may violate this PMSSA, or BAA, or (iv) Tissue Health Plus determines Customer or an Authorized User has jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Software or Services with any credentials assigned to Customer or a member of its Authorized Workforce.  Customer shall notify Tissue Health Plus in the event any Authorized User is terminated or has a change in status of his or her employment with Customer; provided, however, that Customer shall be solely responsible for de-provisioning an Authorized User’s access to Customer’s account unless otherwise expressly agree upon the Parties. Election by Tissue Health Plus to suspend the Software or Services shall not waive or affect the rights of Tissue Health Plus to terminate this PMSSA as provided in this Section 7.
   7. Survival. All sections of this these Terms of Service which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
   1.  Each party represents to the other party that, as of the Effective Date and throughout the Term of this PMSSA: 

(a) Neither it nor its employees or contractors, including Authorized Users, rendering services in connection with this PMSSA is an Ineligible Person.  As used herein, “Ineligible Person” means an individual or entity who (i) is currently excluded, debarred, suspended, or otherwise ineligible to participate in the FHCP or in federal procurement or non-procurement programs; or (ii) has been convicted of a criminal offense that falls within the scope of 42 USC § 1320a-7(a) but has not yet been excluded, debarred, suspended or otherwise declared ineligible.  Each party will notify the other party in writing upon the commencement of any such exclusion or investigation, of such party, within seven business days of receiving first notice of such exclusion or investigation. 

(b) It is a validly organized business entity in good standing in all applicable business locations, and it has the corporate or company power and authority to enter into and perform this PMSSA in accordance with its terms.

(c) Its performance of the obligations described in this PMSSA will not conflict with any other agreement to which it is a party or by which it is bound, and there is no third party claim pending or threatened that would adversely affect such party’s entering into or performing under this PMSSA.

2. Tissue Health Plus shall use reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions in the Software and shall perform the Services in a professional and workmanlike manner and in accordance with the applicable Statement of Work associated with the Order Form.  
3. Tissue Health Plus represents that the Software is a registered with the Food and Drug Administration (“FDA”) as a Class 1 medical device under the Federal Food, Drug, and Cosmetic Act.  Tissue Health Plus is duly registered with the FDA, and the Software has been listed in accordance with 21 CFR Part 807.  The Software complies with all applicable FDA regulations and standards applicable to Class I devices. Tissue Health Plus acknowledges that, as a Class I device, the Software is exempt from premarket notification 510(k) requirements, as specified by the FDA, provided that the Software is not intended for a use that is not exempt.  Tissue Health Plus shall maintain compliance with all relevant regulatory requirements, including any updates or changes to regulations, throughout the duration of the Software’s market presence.  Notwithstanding the foregoing, while Tissue Health Plus asserts that the Software complies with applicable regulations governing “Software as a Medical Device” (as defined by the FDA), Tissue Health Plus does not guarantee that the Software will achieve any specific results or outcomes. Regulatory changes may affect the Software’s compliance status, and Tissue Health Plus is not liable for any consequences of such changes.
4. The Software shall perform in accordance with the Documentation as maybe be modified from time to time, provided that modifications shall not materially alter the basic functionality or business purpose of the Services nor materially degrade any then-current functionality. Software and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Tissue Health Plus or by third-party providers, or because of other causes beyond the reasonable control of Tissue Health Plus, but Tissue Health Plus shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, TISSUE HEALTH PLUS DOES NOT WARRANT THAT THE SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE AND/OR SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND TISSUE HEALTH PLUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 
5. Information or materials available through the Software and Services shall not be substituted for Customer’s professional medical judgment. Customer assumes the full risk and responsibility for the use of information obtained from using the Software and/or Services. THE SERVICES ARE NOT DESIGNED, INTENDED, OR APPROPRIATE TO ADDRESS SERIOUS, EMERGENT, OR LIFE-THREATENING MEDICAL CONDITIONS AND SHOULD NOT BE USED IN THOSE CIRCUMSTANCES
6.  Certain features of the Software are provided by a proprietary artificial intelligence system, not a human being (the “AI Features”). The information Customer receives from the AI Features is not intended to provide clinical diagnosis or care without the review and confirmation by a licensed health care provider.  Use of AI Features may offer certain potential benefits to patients, customers and Tissue Health Plus Providers, but also presents certain potential risks (e.g., the AI Features are not able to exercise medical judgment, the AI Features may provide incorrect or misleading analysis in specific situations, telecommunication or computer technology problems could delay or corrupt AI Feature outputs). Tissue Health Plus attempts to ensure the integrity and accuracy of the AI Features. Tissue Health Plus makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the AI Features output.
7. Tissue Health Plus may provide information to serve as a resource for Customer in the delivery of clinical services and billing and coding for certain services. This may include information and reminders related to Customer’s provision of healthcare services, information and resources. Customer agrees that the information and materials available through the Software and Services are for informational and educational purposes only and are not intended to constitute professional advice, diagnosis or treatment, or to substitute for Customer’s professional judgment. Further, with respect to billing guidance, Customer acknowledges and understands that the billing related information provided is for information purposes only and it is Customer’s sole and complete responsibility to determine how to bill and collect for any and all services provided by its personnel to patients.  Tissue Health Plus is not responsible for the accuracy or completeness of information available from or through the Software or Services nor in connection with any related billing for services by Customer. Customer assumes full risk and responsibility for the use of information Customer obtains from or through the Software or Services. Tissue Health Plus expressly disclaims all responsibility, and shall have no liability, for any damages, loss, injury, or liability whatsoever suffered as a result of Customer’s reliance on or use of the information contained in the Software or Services. Tissue Health Plus does not recommend or endorse any provider of healthcare. Customer will review the definitions, functionality, and limitations of the Software or Services, and will make an independent determination of their suitability for Customer’s use. Tissue Health Plus and its suppliers and licensors disclaim all warranties, whether express or implied, including any warranty as to the quality, accuracy, and suitability of the information provided by the Software or Services for any purpose
8. Customer acknowledges and understands that all Customer Data, including PHI and related data that may be disclosed to Tissue Health Plus through Customer’s use of the Software and Services and that may be considered part of a Customer’s patient’s medical record will be maintained by Customer in accordance with all applicable medical records retention laws, rules and regulations; and that Tissue Health Plus has no obligation to maintain such data or information other than in accordance with these Terms of Service, and hereby disclaims any and all liability associated with maintaining such medical records.
9. INDEMNITY
   1.  Customer shall indemnify and hold harmless Tissue Health Plus from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”)  incurred by Tissue Health Plus, including Losses resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”), arising out of Customer’s negligence, willful misconduct, breach of these Terms of Service, the BAA or violation of any applicable law in connection with its performance under this PMSSA (collectively the “Tissue Health Plus Claim(s)”), including the payment of all amounts that a court or arbitrator finally awards or that Tissue Health Plus agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by Tissue Health Plus or any other party indemnified under this Section in cooperating in the defense of any Claim(s).
   2. Tissue Health Plus shall hold Customer harmless from liability to third parties resulting from infringement by the Software of any United States patent or any copyright or misappropriation of any trade secret, provided Tissue Health Plus is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Tissue Health Plus will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Software (i) not supplied by Tissue Health Plus, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Tissue Health Plus, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Software is not strictly in accordance with these Terms of Service.  If, due to a claim of infringement, the Software is held by a court of competent jurisdiction to be or are believed by Tissue Health Plus to be infringing, Tissue Health Plus may, at its option and expense (a) replace or modify the Software to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Software, or (c) if neither of the foregoing is commercially practicable, terminate this PMSSA and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Software.

10. LIMITATION OF LIABILITY

UNLESS OTHERWISE SET FORTH IN THIS AGREEMENT AND EXCEPT FOR BODILY INJURY OF A PERSON, TISSUE HEALTH PLUS AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THE REASONABLE CONTROL OF TISSUE HEALTH PLUS; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO TISSUE HEALTH PLUS FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT TISSUE HEALTH PLUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

PMSSA Drafted By All Parties. This PMSSA is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this PMSSA shall not be construed against either party.

MISCELLANEOUS

Insurance. At all times during the Term, each party shall maintain, at its own expense, insurance coverage with limits of no less than those set forth below, and with insurers with a minimum A.M. Best Financial Strength rating of “A- (Excellent)”, a “Commercial General Liability” policy in an amount no less than one million dollars ($1,000,000).  In addition, Customer shall maintain, at its own expense, “Professional Liability” policies (errors and omissions type) in an amount no less than one million ($1,000,000) dollars per claim, and a minimum aggregate of three million dollars ($3,000,000). The coverage amount set forth may be met by a combination of underlying and umbrella policies, so long as, in combination, the limits equal or exceed those stated. Each party shall provide the other written proof of compliance with the above insurance requirements by delivering, upon written request, a copy of an industry standard certificate of insurance completed by its insurance carrier or agent certifying that minimum insurance coverage as required above is in effect.

Severability. If any provision of this PMSSA is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this PMSSA will otherwise remain in full force and effect and enforceable.

Assignment. This PMSSA is not assignable, transferable or sublicensable by Customer except with prior written consent of Tissue Health Plus.  Tissue Health Plus may transfer and assign any of its rights and obligations under this PMSSA without consent.

Compliance. Each party agrees to comply with all applicable federal, state and local laws in performing its obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring compliance with all Customer Content and Customer’s business practices, which include, but are not limited to, the federal and state anti-kickback and self-referral laws and regulations at all times during the Term of this PMSSA. The Parties acknowledge that although Tissue Health Plus is obligated to provide the Software and Services as specified in this PMSSA, there is no obligation of Tissue Health Plus to refer patients to Customer or any affiliate of Customer, and there is no obligation of Customer to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This PMSSA will be construed in a manner consistent with compliance with such statutes and regulations, and the parties hereto agree to take such actions necessary to construe and administer this PMSSA accordingly. The parties hereto represent, covenant and agree that the Fees due to Tissue Health Plus under this PMSSA has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to Tissue Health Plus hereunder is to pay fair market value for Software and Services actually rendered by Tissue Health Plus to Customer hereunder. Tissue Health Plus strictly and solely provides Software and applicable Services to healthcare professionals to enable such professionals to connect with their patients, improve care for patients, and identify and order medically necessary Wound Care Supplies for their patients.  No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by Tissue Health Plus (or its employees and agents) to Customer (or its employees or agents) or by Customer (or its employees and agents) to Tissue Health Plus (or its employees and agents). In addition, Fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This PMSSA shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third party payors.

Waivers and Modifications. This PMSSA is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this PMSSA, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this PMSSA and Customer does not have any authority of any kind to bind Tissue Health Plus in any respect whatsoever.  In any action or proceeding to enforce rights under this PMSSA, the prevailing party will be entitled to recover costs and attorneys’ fees

Notices. All notices under this PMSSA will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested

Governing Law. This PMSSA shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.

Public Announcements. The Parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Tissue Health Plus to serve as a reference account upon request

Counterparts. This PMSSA may be executed in one or more counterparts, all of which together shall constitute only one agreement. If any signature is delivered by facsimile or email or is signed in any electronic format, such signature shall create a valid and binding obligation with the same force and effect as if such signature were handwritten. Customer acknowledges and agrees it will not contest the validity or enforceability of this PMSSA and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Customer further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile or electronically transmitted copy of this PMSSA and related documents on the basis that it lacks an original handwritten signature. Computer maintained records of a party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records

Privacy Policy. Customer’s use of the Software and Services are subject to the Tissue Health Plus Privacy Policy. By using the Software and Services, Customer is consenting to the terms of the Privacy Policy and acknowledging that it has reviewed our Privacy Policy located at tissuehealthplus.com/legal/privacy-clinician. 

Order of Precedence. In the event of a conflict among the various documents that constitute this PMSSA, the following order of precedence shall apply: (a) an Amendment shall control over any inconsistent terms in the document it is amending (e.g., the BAA or this PMSSA); (b) solely as to PHI, the BAA shall control over any inconsistent terms of any document (other than an Amendment to the BAA); (c) the body of the Terms of Service shall control over any inconsistent term of an Order Form or Statement of Work, unless the Order Form or Statement of Work specifically references inconsistent terms that the Order Form or Statement of Work is changing; and (d) an appendix or other attachment shall not control over any document, unless such attachment specifically references the inconsistent terms of the document that it is changing.